Kearsey v Nursing and Midwifery Council  EWHC 1603 (Admin)
Ouseley J has done little to settle the debate on whether a disciplinary panel should be permitted to draw adverse inferences from the failure of a registrant to appear before it to account for their actions. In this recent High Court case, his Lordship suggests that while not all other disciplinary bodies may take the same approach, the NMC may wish to consider permitting its panels to draw adverse inferences in circumstances where a registrant fails to attend an enquiry into matters which call for the registrant's explanation.
This is an interesting case for a number of reasons, not least the slightly incredible factual background. K was a nurse who was struck off the register following a panel hearing which he did not attend. The sole witness was an employee of the NHS trust which had formally employed K, who conducted an interview with him, following information the Trust had received that K had received a conviction for assault (which he did not disclose to his employer). K told the investigator that he had been having an affair with a married woman whose husband found him in a compromising position with his wife in the marital home. There was a physical altercation which took place while he was undressed, leading him to feel vulnerable and frightened, and he lashed out. He said that he knew he had a duty to disclose the conviction to his employer, but that he was scared to do so and still remained in fear of the husband.
In fact K had been convicted following a trial of assaulting his then girlfriend. The panel later heard evidence that K had been abusive to the girlfriend for 2-3 months, repeatedly accused her of cheating, reading her email, threatening her with violence, preventing her from leaving and assaulting her on one earlier occasion. K's conduct was found to be impaired by reason of the conviction, his failure to disclose the conviction to his employer and the NMC, and the fact that he had been dishonest with his employer about the circumstances of the conviction.
K appealed the panel's decision on a number of grounds including the NMC's use of the evidence collected in the Trust investigation, the admissibility of evidence which went to the background of the assault, and the adequacy of the Panel's reasons on sanction.
Of particular interest was Ouseley J's obiter comment where he noted that 'the Panel decided not to draw adverse inferences from the registrant's non-attendance. That appears to be a policy for NMC Panels. I am not sure that it is required by law in all cases. The NMC may wish to consider whether it is appropriate, and if so when, to draw adverse inferences where a registrant has refused to engage and to attend, when there are obvious matters calling for an explanation, as opposed simply to pointing to the absence of evidence to the contrary of what NMC says. Not all other disciplinary bodies may take the same approach'.
Although he did not refer to them, these comments echo those of other appeal courts in recent years, such as Radeke v General Dental Council  EWHC 778 (Admin) where Turner J said he 'could envisage circumstances in which a practitioner unfit to attend a hearing would nevertheless be capable of providing a witness statement. Where such a practitioner fails to produce such a statement, circumstances may arise in which an adverse inference could be drawn in accordance with the approach of the Court of Appeal in Wiszniewski v Central Manchester HA  Lloyd's Rep. Med. 223.' We commented on the case of Iqbal v Solicitors Regulation Authority  EWHC 3251 (Admin) here where the Court had suggested that the Solicitors Disciplinary Tribunal should review and update its practice on adverse inferences on the basis that the public would expect a professional to account for their actions.
Clearly, a regulator may wish to have the power to instruct its panels to draw adverse inferences in appropriate circumstances. A regulatory body may be understandably curious as to why a professional person would not attend a disciplinary panel hearing to provide an account of their actions when charged with allegations which call into question their fitness to practise. There is some force in the argument that an individual who chooses to work in a regulated profession should be expected to engage with the disciplinary process in the public interest. Whilst any disciplinary process must be Article 6 compliant, it is a fundamental tenet of professional regulation that the public interest outweighs the individual fortunes of the registrant, and the public and the profession is entitled to expect higher levels of accountability and professionalism of regulated individuals.
Whilst these recent cases suggest that this approach may be favourably met by the courts in any appeal, we have not yet seen any judicial comment on how a regulator may go about permitting or instructing its panels to draw adverse inferences. In the criminal context, the practice of drawing adverse inferences is codified in sections 34 – 37 of the Criminal Justice and Public Order Act 1994 which did away with the pre-existing common law right to silence and imposed a number of conditions which must be satisfied before adverse inferences can be drawn, both pre-charge and at trial. These preconditions are to ensure that important common law principles such as the right to remain silent and maxims such as 'he who alleges must prove' are appropriately safeguarded and that appropriate circumstances exist before the measure is taken. As these principles are arguably equally important in the regulatory context, is it the case that regulators should be cautious to adopt the practice unless or until it has a specific statutory power to allow their panels to do so? Will any regulators be bold enough to seek to pursue a policy of inviting panels to draw adverse inferences without seeking statutory powers?
In any event, if regulatory bodies were to allow the drawing of adverse inferences, case law in the criminal jurisdiction tells us it must only be done in appropriate cases. Decision-making bodies should not draw adverse inferences in a way that would reverse the burden of proof or alter the standard of proof; a registrant's non-attendance should not be exploited in order to bolster a weak prosecution case. Rather, the panel should take care to express that it accepted the evidence of the prosecuting body in the absence of any evidence from the registrant which may undermine or contradict the prosecution evidence adduced, and that silence from the registrant can only sensibly be attributed to having no good defence case. Adverse inferences should not be drawn where panels are satisfied that registrants are not giving evidence based on medical or legal advice, though in order not to frustrate the process, the evidence to support such a submission would need to be carefully considered and evaluated.
Regulators seeking to introduce adverse inferences into their disciplinary framework will have to grapple with a number of issues that are not relevant in a criminal context. Can case examiners and preliminary committees draw adverse inferences from a registrant's failure to provide an account at a preliminary stage of proceedings? If a registrant does provide an early response to allegations or complaints, can adverse inferences still be drawn if he later fails to attend a full hearing or give evidence? At what stage of the process can or should adverse inferences be drawn – if adverse inferences are drawn at the fact finding stage, can they also be drawn by a panel when considering misconduct and impairment?
A fair and proportionate process would also require registrants to have been informed by the regulator that a potential consequence of non-attendance or non-engagement may be the drawing of adverse inferences. Panels would need to be appropriately advised on the law before deciding it is reasonable to draw adverse inferences, and would need to explain its decision very clearly. Drawing adverse inferences should not be done as a means of 'punishing' a registrant who may offend a panel by his non-appearance before his professional body.
The public and many, if not most, members of a regulated profession would expect that robust assumptions would be made against an absent registrant facing a disciplinary panel, and these recent cases seem to suggest that the courts would be sympathetic to panels that make those assumptions. Until there is judicial clarity on this point however, regulators and panels may wish to exercise utmost caution before changing its policies; defence organisations will undoubtedly be swift to oppose the introduction of such a measure, and rightly so as the issues are far from clear cut.